Arlen Specter

Mr. SPECTER

Mr. SPECTER. Judge Smith was questioned at some length about trips he had made to seminars, that there might have been an effort to influence his decisions and that they were, in effect, junkets. There is a famous expression that it does not lie in the mouth of someone to say something, which really means that party has no standing to raise the question. I do not think that the Senate, or Senators, have standing to raise questions about travel. I say that in the context of traveling myself, and I think those travels are very worthwhile. And I have gone to seminars, and I make the appropriate disclosure on my financial statements. The seminars that Judge Smith attended were entirely appropriate, and he was challenged because he had not listed the value of those trips to seminars. He stated that he thought he had complied with the law. Since staff has checked out, it was found there was no requirement that the value be listed. It may be when we are talking about Judge Pickering and perhaps about Judge Smith--and I feel confident Judge Smith will be acted upon favorably by the Judiciary Committee, but one never knows--but in looking at the proceedings as to Judge Pickering, this may be a warm-up for the next Supreme Court nomination. When Attorney General John Ashcroft was up for a confirmation hearing, there was an undertone that where you have the issue of choice, someone has to be willing to say they will support Roe v. Wade. It really did not apply to the Attorney General's nomination itself but as to his pro-life position, which then-Senator Ashcroft had articulated, we knew his position. There was an undertone in the hearing, and some on the Judiciary Committee have articulated a view that there ought to be a litmus test, that nobody ought to be confirmed unless that judicial nominee is prepared to say the nominee would uphold Roe v. Wade. When those issues have been posed in the past, the nominees have been accorded standing to say they are not going to comment about cases which may come before the Court. But there is what at least appears to be an effort to put Roe v. Wade on a par with Brown v. Board of Education. Doubtless it is true that no one could be confirmed to the Supreme Court of the United States or to the Federal judiciary if they said they would favor reversing Brown v. Board of Education and integration. It is going to be a hotly contested issue, I believe. Again, I may be wrong, but I do not think so, that some in the Senate and some on the Judiciary Committee, and perhaps many others, are trying to equate Roe v. Wade with Brown v. Board of Education. We see the changing times on the issue of the death penalty for people who have a mental impairment, with the Supreme Court saying they are looking for a national consensus before changing the law. On the evaluation of judicial decisions where the Court does look for an evolving national consensus to establish the moral temper ofttimes, with the Court's interpretations being very different on the equal protection clause of Plessy v. Ferguson in 1896 compared to the reversal of Brown v. Board of Education in 1954. I do believe it is time for a truce between Republicans and Democrats on this issue of judicial confirmations. I think we ought to declare a truce and sign an armistice agreement that we are not going to have a repetition of what happened when we had a Democrat in the White House and Republicans in control of the Judiciary Committee. That was the position I took at the time in breaking party ranks and voting to confirm Judge Paez and Judge Marcia Berzon and in voting to confirm Judge Roger Gregory for the Court of Appeals for the Fourth Circuit, and in voting to confirm Bill Lan Lee for Assistant Attorney General of the Civil Division. We ought to declare this truce and ought to sign this armistice so we take partisan politics out of the confirmation process of Federal judges. It is high time we did that. I hope the confirmation proceeding as to Judge Charles Pickering elevating him from the district court to the court of appeals will be a good occasion for that truce, or that signing of an armistice. I yield the floor. Exhibit 1 Brooks Smith--Case Statistics absolute numbers Smith has closed 5,298 cases--of which 526 cases were appealed to the Third Circuit. Smith has been reversed 53 times over his 13 year career as a federal judge (since 11/1/1988). Note that in 12 of these 53 cases (i.e., about one-fourth of the cases), Smith was affirmed in part and reversed in part. And some of these were complex cases involving numerous issues where he was affirmed on nearly all of the issues but reversed on one ground or a few grounds. percentages Smith has been reversed in 10% of appealed cases (i.e., 53 of 526 cases). He has been reversed in only 1% of closed cases (i.e., 53 of 5,298 cases). comparison Smith's 10% average reversal rate (in appealed cases) from 1989-2001 is similar to the average annual reversal rate for the Third Circuit and for all circuits for appeals terminated on the merits. [Amount in percent] ------------------------------------------------------------------------ Third All Smith Circuit circuits ------------------------------------------------------------------------ 29.16 12.4 13.4 C 1990................................ 15.38 11.3 11.8 1991................................ 3.7 10.4 11.7 1992................................ 12.5 10.4 11.0 1993................................ 6.66 10.3 10.0 1994................................ 11.9 11.8 10.0 1995................................ 6.55 9.4 11.0 1996................................ 10 9.9 9.4 1997................................ 16.66 9.9 9.1 1998................................ 13.51 9.0 10.2 1999................................ 0 10.4 9.1 2000................................ 9.3 12.0 9.7 2001................................ 5.88 11.7 9.2 ------------------------------------------------------------------------ Notes: None of the cases closed by Smith in 1988 were appealed. The reversal rates for the Third Circuit and for all circuits were obtained from the Administrative Office of the U.S. Courts; these rates do not include data regarding the Federal Circuit. Exhibit 2 [From the Pittsburgh Post-Gazette, February 26, 2002] Setting the Record Straight on Judge D. Brooks Smith (By Dick Thornburgh) Washington.--Today the Senate Judiciary Committee will consider President Bush's nomination of Chief U.S. District Judge D. Brooks smith for the 3rd U.S. Circuit Court of Appeals, headquartered in Philadelphia. For 18 years, Judge Smith has served Pennsylvanians with distinction. Judge Smith boasts first-rate credentials in addition to his years of judicial experience, and the American Bar Association unanimously gave him its highest rating. Over 100 Democrats and Republicans alike have signed letters of support to the Senate Judiciary Committee. These letters from judges, public officials and leaders of civil liberties, labor, and women's organizations all praise Judge Smith's fairness and impartiality. The Post-Gazette has detailed the campaign against Judge Smith by the Community Rights Counsel and other extreme interest groups. Just as night follows day, it seems the usual suspects are lining up for another effort to ``Bork'' a distinguished judge. Specifically, critics argue that Judge Smith should have immediately recused himself from a 1997 municipal fraud case involving an investment adviser later convicted of defrauding several Pennsylvania school districts. Critics say recusal was necessary as Judge Smith's wife worked at Mid-State Bank where some of the defendants' assets were deposited, and the Smiths held stock in Mid-State's parent company. Please allow me to set the record straight. I served as the trustee for the defrauded schools and bore a fiduciary duty to safeguard their funds. And I can say with front-row, firsthand knowledge that Judge Smith acted with absolute integrity, independence and honor. First, Mid-State Bank was not a party to the case, and nothing at the outset suggested Mid-State was complicit in any fraudulent scheme. It was therefore unlikely that Judge Smith's wife, who worked in an unrelated part of the bank, would become a material witness. Since the complint did not allege any wrongdoing by the bank holding the defendants' funds, any stock the Smiths owned in its parent company was immaterial. As trustee, I had sole possession of and control over the assets, and Judge Smith's initial order distributing 50 percent of frozen funds to defrauded school districts just approved an interim plan proposed jointly by me and the Securities and Exchange Commission while the case proceeded. When Judge Smith later received information that Mid-State could, in the future, conceivably play a role in the litigation, out of an excess of caution he immediately recused himself sua sponte, without being asked by either party. The actions that Judge Smith took prior to his recusal in the civil case did nothing to limit Mid--State's eventual liability exposure or impact the victims' rights of recovery. In fact, the attacks by interest groups ignore the fact that no funds were even deposited at Mid-State at the time Judge Smith granted his last orders. As trustee, I had transferred the assets to another bank several days before this order. Nothing that occurred between this order and Judge Smith's recusal days later benefited Mid-State. Judge Donetta Ambrose, who obtained the case after Judge Smith's recusal, agreed. She wrote to the Senate Judiciary Committee to say, ``There was never any suggestion by me or the Court of Appeals that Judge Smith acted inappropriately or unethically. Rather, he acted prudently and cautiously. . . . The allegations of unethical conduct in the context of this case are without foundation.'' Partisan critics also improperly fault Judge Smith for temporarily handling a later criminal case against the investment adviser. Nobody involved in the case has alleged that Judge Smith issued any improper orders or took any inappropriate action. The case was assigned to Judge Smith only after lawyers in the case agreed that it was unrelated to the SEC's civil case. Mid-State Bank was not a party. The U.S. attorney's office never sought recusal, and defense counsel did not seek recusal until four months later, when Judge Smith immediately recused himself. As governor of Pennsylvania in 1984, I had the honor of originally nominating Brooks Smith to sit on the Court of Common Pleas in Blair County. In 1988, while attorney general of the United States, I had the honor of seeing the U.S. Senate unanimously confirm Brooks Smith as a federal judge. This year, I hope to see the same Senate set aside the recent attacks of extreme interest groups and honor Judge Smith's long record of judicial service with a swift and unanimous approval to the 3rd Circuit. By any measure of judicial merit, Brooks Smith is qualified to serve. Like the president who nominated him, Brooks Smith has rallied a broad coalition of support. It would be wrong to allow extreme interest groups to delay his confirmation by even one day. However, I am optimistic that this will not occur. Judge Smith acquired his reputation for honesty, uprightness and professionalism the old-fashioned way--he earned it. And it will see him through.

Mr. SPECTER. Judge Smith was further challenged on the issue of conflict of interest when he sat on a case where a bank was a depository, where he had stock or financial interest in the bank and his wife was an employee but the bank was not a party. The trustee in that case was Dick Thornburgh, formerly Governor of Pennsylvania and also formerly Attorney General of the United States. Governor Thornburgh wrote an op-ed piece for the Pittsburgh Post-Gazette exonerating Judge Smith from any issue of conflict of interest, citing Justice Donetta Ambrose who succeeded Judge Smith to handle that case after Judge Smith recused himself. I ask unanimous consent that at the conclusion of this statement the op-ed piece by Governor Thornburgh be printed in the Record.

Mr. SPECTER. Madam President, I have sought recognition to announce my support for the nomination of District Court Judge Charles Pickering to the Court of Appeals and make some comments about the pending nomination of Judge D. Brooks Smith, now Chief Judge of the Western District of Pennsylvania for the Court of Appeals for the Third Circuit, who had a hearing yesterday, and to comment generally about the issues facing the Judiciary Committee on partisanship. Judge Pickering appeared before the Judiciary Committee. Prior to that time, I had an opportunity to read his opinions, to meet with him personally, to go over the issues, to study his record, and it is my conclusion that if we were dealing with State Senator Charles Pickering from the early 1970s, we would not confirm him for the Court of Appeals. But dealing with Charles Pickering in the year 2002, based upon his record today, he is worthy of confirmation. In the early 1960s, it was a different world, as we all know. Prior to the passage of the Civil Rights Act of 1964, prior to the passage of the Voting Rights Act and the early days following the decision of the Supreme Court in Brown v. Board of Education handed down in 1954, it was a different world. Judge Pickering has distinguished himself and has shown that he has a sensitivity to civil rights issues. He spoke out against the leader of the Ku Klux Klan in a way which was a threat to his personal security. He has demonstrated in his conduct a sensitivity to racial matters. There has been quite a divergence in opinion about Judge Pickering based upon people inside the beltway, in Washington, contrasted with the African Americans who know Judge Charles Pickering from his hometown of Laurel, MS. The pseudo-hearings which have been conducted on national television and the comments in the national press from those who know Judge Pickering from Mississippi portray a very different man than those who oppose his nomination within the beltway. In making that comparison, I raise no objection to the opinions of the positions taken by people who have spoken out against Judge Pickering. That is their right. But I do make a sharp distinction in terms of the value of those opinions and the weight which ought to be given to those opinions when you have people who know him so much better on his home turf. If we were to apply the standards which would have been applicable to State Senator Charles Pickering in the early 1970s, it would be very different. I cannot help but think of Senator Thurmond who ran for President as a Dixiecrat in 1948 and who was a staunch opponent of many of the civil rights issues. Senator Thurmond, as so many others, like Charles Pickering, changed over the years and saw the evolution from desegregation in Brown v. Board of Education in 1954 to a very different era. Senator Thurmond has enormous support among African Americans. I mention him because he is someone known to everybody in the Senate, having been here since 1954 and having established himself as very sensitive and very pro-civil rights, but if he were to be judged on his record from the early 1960s, as some are trying to judge then-State Senator Charles Pickering on his record of the early 1970s, Senator Thurmond would not be confirmed. I can count the votes, Madam President, and it seems to me that, regrettably, the Judiciary Committee is going to vote along party lines and deny Judge Pickering an affirmative vote to bring his nomination to the floor of the Senate. I may be wrong. I hope I am wrong. I do not think I am wrong. It seems to me that whatever the vote for confirmation is in the Judiciary Committee, Judge Pickering ought to come to the full Senate. Judge Bork and Judge Thomas--Judge Bork then a judge on the District of Columbia Circuit Court--received a negative vote in the Senate Judiciary Committee 9 to 5, but he was voted to the floor for full consideration and ultimately did not prevail and was defeated 42 in favor, 58 against. Justice Thomas, then Judge Thomas, had a tie vote in the Judiciary Committee but was voted out of the Judiciary Committee by a vote of 13 to 1 to be considered by the full Senate. In the old days, the Judiciary Committee used to bottle up a lot of civil rights legislation. It is my view that this is a matter which ought to be considered by the full Senate. Yesterday, we had the confirmation hearing of United States District Court Judge D. Brooks Smith, who was recommended by Senator Heinz and myself in 1988, appointed by President Reagan, and has had a very distinguished record on the United States District Court for the Western District of Pennsylvania where he now serves as chief judge. Prior to that, he had been in the Court of Common Pleas in Blair County, PA, and prior to that had been assistant district attorney. Judge Smith was challenged on a number of grounds. People raised questions about his reversal rate, but when that was examined, we found that of the approximately 5,300 cases that Judge Smith had, about 10 percent of them were appealed, about 530 cases, and that his reversal rate was right at 10 percent, which is right at the norm. His reversal rate was higher in 1989, his first year as a federal judge, in excess of 35 percent. As the years passed and as he gained more experience, he brought that reversal rate down very substantially. With the total number of cases, about 5,300, and something around 50 reversals, it is right at the 1 percent mark. I ask unanimous consent that at the conclusion of this presentation the text of the record of Judge Smith on reversals be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Madam President, I ask unanimous consent to speak for up to 15 minutes in morning business.

Mr. SPECTER

Mr. SPECTER. Mr. President, the Senator from Missouri articulates it accurately. It is impossible to prosecute an unknown person. That is a matter of the fundamental definition. If you do not know the person, you can't swear out a warrant for an arrest. You also can't take the unknown person into custody. Then you would have the problem of proving that this unknown person committed the crime, and proving it beyond a reasonable doubt. It can't be done. I am concerned about changing motor voter. There is a lot of criticism of motor voter generally. When I supported motor voter, I got a lot of criticism from many people who thought that it went too far. However, I was willing to support motor voter legislation with that broad sweep to try to encourage people to be on the voter rolls to express themselves. Motor voter works against my interest as a candidate in a city like Philadelphia. That happens to be the fact of life. It works against my electoral interests as a U.S. Senator running in Pennsylvania. But notwithstanding that factor, I have supported it, and I continue to support it. If fraud becomes so widespread--and I think it is reaching that point--that we really do not know the level of fraud, it is impossible to determine. But, there is a lot of evidence that there are a lot of people who are not in existence who are voting. We do know that, because there is a check back. There is a signature of John Jones at a given address, and you find out that there is no John Jones at that address. Who signed the name? How can you tell? You cannot prove who did it to have a criminal prosecution. It is about the easiest form of voter fraud to perpetrate. If you go into the polling booth in Philadelphia, as we had a lot of people do, and walk behind the curtain with a registered voter and pull the lever, or give illegal assistance--there are legal ways to do it, if the person can't pull the lever--there the person is taking a chance. You can identify them. You can get a witness. You can prosecute them. You can convict them. But, that can't be done just on signature. For the people who are urging the enactment of the Schumer amendment to broaden the opportunities to vote, let me say to them head on that they are going to be defeating their cause, because motor voter is going to be in jeopardy unless we are able to work it out in a way so there is not fraud in this manner. The underlying bill is a modest step forward to eliminate that fraud. I compliment the Senator from Missouri for his diligence in pursuing it. I also compliment him for his diligence in pursuing it over the weekend. It is pretty hard to find most of us over the weekend. But he found me and talked to me about this matter. I told him that my experience supported the stand that he was taking, and that I was prepared to back him and come to the floor and make this argument.

Mr. SPECTER. Well, vote fraud is prosecuted. When I was District Attorney of Philadelphia, I prosecuted Republicans and Democrats. Customarily, vote fraud is illegal assistance when somebody goes into the polling place, and this happens, and pulls the lever. There you can have a witness. You can identify the individual, and you can prosecute them. If you are seeking to prosecute someone who has sent in a purported signature which matches the signature on record, and there is registration by mail so that no one ever sees the person, you don't have an identification of the voter in the first instance. If you do not have an ongoing identification of that person's actual existence, it is not virtually impossible. It is impossible. How are you going to find the person who signed their name, even if you ascertain that there is no such person as the purported signature? How are you going to find them? It is not a needle in the haystack. It is a needle in a city of more than a million people.

Mr. SPECTER. I yield, Mr. President. I am reluctant to do so, knowing the cross-examination expertise of the Senator from Missouri, but I will take my chances.

Mr. SPECTER. Mr. President, I have sought recognition to speak in opposition to the underlying amendment offered by the Senator from New York, Senator Schumer, which would permit people to vote by mail with only an authentication of a signature. The amendment modifies the underlying bill, which would require that there be either a photo identification or a government check which would establish that the individual is, in fact, in existence, not a false person; or a paycheck, again establishing the person is in existence; or a utility bill or a bank statement or some other governmental document. There is no doubt that it is in the interests of democracy to have as many people register to vote as possible so that people can express themselves in the electoral process. That is very fundamental. It is also fundamental that we ought to do whatever is reasonably possible to avoid vote fraud. This is an issue which I faced to a very substantial extent when I was District Attorney of Philadelphia. Philadelphia is a rough, tough, political town. When I was DA in the 1960s and 1970s it was a rougher, tougher political town. I had the responsibility to enforce the election laws. In that capacity, on a bipartisan, nonpartisan basis, I prosecuted both Republicans and Democrats alike for vote fraud, and there was a lot of it in the city of Philadelphia. We could only detect a relatively small amount of it, but that was a real problem in our city elections. When motor voter came up, I supported it, to try to broaden the availability of registration for the broadest number of people. However, there have been very substantial problems with people purporting to vote when those people are not in existence. When I was DA of Philadelphia, we had a great many people purporting to vote where there was no such person. It is a difficult matter to police and to enforce. The underlying bill has a minimal check, to see to it that there is, in fact, a person who is registered to vote. If you have somebody who has a government check, that is a solid indication. It is not absolute proof that the person is in existence, but they wouldn't be getting a government check or paycheck or utility bill or bank statement. The photo ID, of course, is the best, but the underlying bill does not require that. It is a modest stand in seeing to it that somebody actually is in existence. If we are to continue motor voter and to have the broad sweep of availability for people to register so you do not have to go down specifically to the registration spot--which is the customary way, in many, many jurisdictions--if we are to have these procedures which make it very, very easy for people to register, and they are to be maintained and continue in existence, then we are going to have to take steps to stop fraud. It seems to me the provisions of the underlying bill are minimal. So, if you have an amendment which the Senator from New York has offered, that says all you have to have is a signature, anybody can sign a purported signature. Anybody can sign a name. Then, if securing the right to vote simply requires putting that writing down again, it may be the signature of someone other than the person which it purports to represent. So, I believe the underlying Schumer amendment is unwise. That is why I voted to table it. Now we have a second-degree amendment, offered by the Senator from Missouri, which would seek to limit the applicability of the underlying Schumer amendment. I think that would at least take some steps to safeguard against voter fraud.

Mr. SPECTER. Mr. President, I ask unanimous consent the order for the quorum call be dispensed with.

Mr. SPECTER

Mr. SPECTER. Mr. President, I would like to report briefly on a trip to Latin America which I made last month before the Senate went into session in January. This trip took me to a number of Latin American countries to discuss issues of trade and drug control. The first stop was in Havana, Cuba, where I had an opportunity to talk to President Fidel Castro about the serious situation in Cuba on the deprivation of human rights, and about the failure in Cuba to have contested elections. I urged President Castro to run in a contested election. I had the opportunity to meet with President Castro about 30 months earlier in June of the year of 1999 and made the same points to him. However, emphatically, again, when I challenged President Castro to run against someone in a contested election, he told me he did have an opponent. His opponent was the United States of America. He said this in more of a humorous way. The United States policy toward Cuba, I think, has tended to make, if not quite a martyr, at least a sympathetic person in President Castro. We talked about a great many things. With my background as assistant counsel of the Warren Commission, I asked President Castro if there was any connection between Lee Harvey Oswald and Cuba. There had been rumors at the time that Castro and Cuban officials may have put Oswald up to the assassination of President Kennedy. Those rumors were based upon the CIA efforts to assassinate Castro in that era. Oswald was a part of the Fair Play for Cuba Committee, which had a rally in New Orleans. When I asked that of President Castro, he said he was not responsible for Oswald. He was a Marxist, and not a madman. We talked in some detail about the Cuban missile crisis in 1962 and why Castro permitted the Soviets to have missiles in Cuba. He tried to defend that, I think unpersuasively, with the threats to himself from the Bay of Pigs invasion and the CIA assassination attempts. Before going to see him 30 months ago, I checked with the records of the Church Committee, and found, in fact, that there was evidence about efforts to assassinate Castro--maybe 8 or 9 such attempts. When I told Castro that number, he laughed, and said that there had been many, many more attempts than that--something in the 300 range. I asked him how it felt to be the subject of assassination attempts. He said: Muy bien. This is Spanish for ``very good.'' I said: No, no. How did it really feel when they were trying to assassinate you? Again, he said: Muy bien. I said: No. How did it really feel? He said: Do you have a sport? I said: Yes. My sport is squash. He said, through the interpreter: Well, avoiding assassination is a sport for me. I talked to Castro in some detail about his willingness to have Cuban airspace and Cuban waters used by the United States to detect drug trafficking. Toward that end, I offered an amendment to the Foreign Operations Appropriations bill a year and a half ago, which was defeated in conference. I offered a milder bill this year which was accepted, calling for a report from the State Department. However, when Castro makes an offer to allow Cuban waters and Cuban airspace to interdict drug traffickers, that is an offer we ought to accept. Drugs are polluting a generation of Americans and they are a major cause of street crime in America, which is something that I fought against as District Attorney of Philadelphia. If we can stop the flow of drugs with Castro's assistance, we ought to take him up on that offer. There have been some changes in U.S. policy toward Cuba. The House of Representatives submitted a bill with a provision to ease travel restrictions, which was dropped in conference. It is my view that it is a very small step which ought to be uncontested. We then traveled to other Latin American countries. We were in Argentina, where it is well-known that there is a tremendous financial crisis. Argentina has lived beyond its means. They have the inability to pay major suppliers, after having talked to major U.S. firms, such as Exxon-Mobil, IBM, and General Motors. They cannot withdraw money from their bank accounts to pay their suppliers. The International Monetary Fund is working on the matter. It would be my hope that the United States would provide some leadership and some expertise to try to bring Argentina out of this economic crisis. I think a good bit of the record from the United States and the International Monetary Fund has been too harsh. I think we can make our point without language which borders on arrogance or borders on insults because Argentina is a very important country in Latin America. One of the problems with Latin America is the frequency of the dictatorships, such as Juan Peron in Argentina, as well as those in Chile and Brazil. It is just a way of life there. Trade with the United States, I think, is very important to promote democracy. In Peru there was great concern regarding the trade agreement with the United States that had lapsed in December. It is my hope that this trade bill will be acted upon by the Congress at an early date. In Chile they are waiting for a trade bill to be enacted, with some ten rounds of negotiations. The President of Chile is willing to have an agreement, even if it is not fast tracked, and even if there would be amendments offered on the floor of the Senate or the House of Representatives. In Uruguay we met with the distinguished President Jorge Batlle. We have a very distinguished U.S. Ambassador there, Martin Silverstein, a Pennsylvanian. We took a look at the coastline, with the attractive apartment houses in Montevideo. Uruguay is quite a contrast to the barren coastline of Havana, Cuba, showing what free enterprise and democracy can do if it is permitted to operate. Mr. President, I would just like to add another comment or two about Brazil, where we met with the equivalent of our National Security Adviser. There is a little area where Paraguay, Brazil, and Argentina meet where there are supporters of Hezbollah posing quite a threat to that area. In Buenos Aires, we met at the Jewish Community Center with leading Jewish officials there and were told, in detail, about the bombing of the Jewish Community Center in 1994 and the attack on the Israeli Embassy. I was pleased to note that the Brazilian officials are looking into this issue as to the potential terrorist activity arising out of this group in that little section where Paraguay, Brazil, and Argentina meet. On January 2, 2002, we arrived in Havana, Cuba for two days of meetings with human rights activists, religious leaders, medical researchers, our U.S. country team, and President Fidel Castro. When we arrived in Cuba, we were met by the U.S. country team, who briefed us on the current situation in Cuba. We began by meeting with a delegation of human rights activists, all of whom had been jailed during the Castro regime on various charges. When asked why he was jailed, one of the dissidents, Oswaldo Paya Sardinas, President of the Christian Liberation Movement, expressed the general sentiment of the group that he was jailed for the anti-Castro opinions he publicly expressed. When I asked them their opinion on the embargo, the group of Cuban dissidents was split on the advisability of continuing the U.S. embargo with Cuba. Next we traveled to the Finlay Institute in Havana, a research center dedicated to the development and testing of vaccines. Our briefing on the Finlay Institute's work was conducted by a team of researchers including Dr. Concepcion Campa, Director of the Institute and leader of the team that developed the vaccine for meningitis B. Supported entirely by the Cuban government, the Finlay Institute, which I had previously visited in June 1999, is one of the forty-five biotechnology facilities supported by government funds. The Cuban government has demonstrated a commitment to medical research and cooperative agreements, such as the one the Finlay Institute entered into with GlaxoSmithKline in 1999, licensed by the U.S. Treasury Department. This agreement represents a positive and productive relationship with this ostracized nation. The next morning we met with a delegation of Cuban officials, including the Minister of Justice Roberto Sotolongo and Oliverio Montalvo, the Drug Enforcement Chief. Minister Sotolongo responded to my question regarding the advisability of cooperation between the U.S. and Cuba on the drug issues with his hope that the issue not be politicized. He further stated that exchanges of information between the U.S. and Cuba could net real results in preventing drugs from entering the U.S. through this region. The Ministers wanted us to know that Cuba is actively involved in intercepting and destroying contraband found in Cuban waters en route to the U.S. and elsewhere. Minister Sotolongo detailed the 1996 incident involving the Limerick, a successful joint U.S.-Cuba drug interdiction operation. The Limerick, carrying 6.5 tons of cocaine drifted into Cuban waters and was impounded. All the evidence was turned over to the United States, and those involved were tried and convicted in a court with the participation of Cuban officials. Our time in Cuba concluded with a meeting with President Fidel Castro, which lasted six and one-half hours. Many issues were discussed, including our earlier meeting with the dissidents. President Castro did not directly respond to the merits of the dissidents' issues, but chose instead to reprimand our congressional delegation for holding meetings independent of the schedule that his functionaries had in mind for us. We flatly rejected his objection. Our conversation with President Castro began with a wide-ranging discussion on drug interdiction. President Castro suggested a formal relationship with the U.S. in order to make progress on drug interdiction efforts in the area. This was a suggestion made to me by General Barry McCaffrey, former head of U.S. drug policy in the previous administration. When asked if he wanted the embargo against Cuba lifted, President Castro responded, ``Can you doubt that?'' We spoke of the September 11, 2001 terrorist attacks on America and President Castro was asked to condemn Osama bin Laden. While making general statements against terrorism, President Castro would not condemn bin Laden, feigning a lack of evidence in his possession to make such a condemnation. The President also offered that he had not heard of Osama bin Laden prior to September 11, 2001 incidents and closed our meeting with a call for a bilateral agreement with Cuba to fight terrorism. As we arrived in Cuba, the United States' decision to transfer detainees from Afghanistan to Guantanamo Bay was being announced publicly. President Castro had issued a press release saying that the Government of Cuba had too little information to comment on the U.S. plan to use Guantanamo Bay for Afghan detainees. At the news conference on January 4, 2002, before our departure, I was asked about the issue and said that my apprisal was that President Castro was not going to object to the U.S. plan to use Guantanamo Bay because if he had an objection, he would have already expressed it. My meetings with President Castro, religious leaders, human rights activists, and medical researchers lead me to believe that we must continue to support and expand our people-to-people relationships with Cuba. There are many areas of mutual concern between our two countries, including drug interdiction and medical research. On January 4, 2002, Senator Chafee and I traveled to Lima, Peru and were met by Ambassador John Hamilton. Our meeting with President Alejandro Toledo included Foreign Minister Diego Garcia Sayan, First Vice President and Minister of Industry and Trade Raul Diez Canseco, Trade Vice Minister Alfredo Ferrero, and drug czar Ricardo Vega Llona. We first exchanged welcoming statements and our expressions of sympathy to Peru for the tragedy that took place just a week before our arrival in downtown Lima. A fire, stemming from fireworks, had set ablaze a shopping district and killed over 250, according to reports at that time. The President made clear his desire for a renewed and expanded Andean Trade Preference Act (ATPA) and for continued assistance in combating the drug trade. President Toledo expressed concern that the trade agreement between the United States and Peru had lapsed on December 4, 2001, and urged that the Congress give it prompt consideration. He said that Peruvian farmers would be tempted to grow products for drug production instead of textile production, if the agreement was not extended. I told him I would urge prompt consideration by the Congress. The President and Ministers made the case that eliminating the coca trade in Peru is essential to combat terrorism, and spoke strongly to the elimination of the narco-terrorism as a ``matter of national security.'' With regards to the general state of the Peruvian economy, the President reported that they were coming off of three years of little or no growth, further reporting that the Peruvian economy is affected by the overall world economy. Senator Chafee and I were further debriefed on the state of the Peruvian economy by the Minister of Economy and Finance Pedro Pablo Kuczynski. The President further described his ``full commitment'' to reform of the Peruvian judicial system. In a separate meeting, I queried the drug czar and his colleagues further on the progress of the drug war in Peru and the region. There was general agreement with my point that progress is difficult without a reduction in the demand for drugs. Meeting participants reiterated the need for the Andean anti-drug plan, which offers increased intelligence sharing, regional air coverage, and maritime cooperation among the Andean nations. Further, it was emphasized that an alternative crop or industry to drug crops was essential for local farmers. From Lima, Peru, Senator Chafee and I traveled to Santiago, Chile on January 6, 2002. After our meeting with President Ricardo Lagos, I wrote a letter to President Bush and Treasury Secretary Paul O'Neill expressing President Lagos' strong support for the U.S.-Chile Bilateral Free Trade Agreement (FTA) without linkage to passage by the U.S. Congress of trade promotion authority. President Lagos expressed his concern that ongoing congressional negotiations with the White House regarding trade promotion authority may further delay consideration of the Bilateral FTA with Chile. The President further stated that Chile wants ``trade not aid.'' Additional topics discussed included the potential F-16 sale to Chile, as well as the Pinochet and Letelier/Moffit cases. On December 27, 2000, the Chilean Ministry of Defense announced that the Government of Chile had authorized the Chilean Air Force to initiate discussions on the purchase of ten Lockheed Martin F-16 Fighting Falcons, Block 50, from the United States. The F-16 was chosen over the French Mirage and the Swedish Gripen on its merits in a competitive, transparent selection process. Regarding the Letelier/Moffit case, which involved the 1976 car bomb murder in Washington, D.C. of former Chilean Ambassador the U.S. Orlando Letelier and his American citizen assistant, Ronnie Moffit. I told the President that the jail sentences of six, seven, and eight years, which were given to those involved in this terrorist act on U.S. soil, were not sufficient in my opinion and asked his opinion on the extradition of those individuals to the U.S. for trial. President Lagos responded that he cannot take a position that would appear to pressure the Court, but that his impression was such that the Court, on its own, might well order extradition. Concerning counter-terrorism and the events of September 11, 2001, the President expressed strong condemnation of the terrorist attacks. This expression is in keeping the Lagos Administration's action immediately following the terrorist attacks in the U.S. As head of the RIO Group of Latin American countries in 2001, Chile leads the coordinated counter-terrorism efforts for the Group. On January 8, 2002, Senator Chafee and I arrived in Buenos Aires, Argentina, just one week after the latest President was installed during this tumultuous time in that country. Newly-installed President Eduardo Duhalde, the fifth president in thirteen days, is confronted with a bankrupt government and a citizenry deeply dispirited after four years of a worsening economy and recent political instability. It is unclear at this time if this administration is capable, or willing, to put together a viable long-term economic plan to pull Argentina out of its very serious economic situation. President Duhalde told us that his administration would have a new budget passed within fifteen days with a plan to retire his country's industrial debt, which could then justify further aid from the International Monetary Fund. Corporate representatives from Bank of Boston, General Motors, IBM, and ESSO detailed the extremely difficult business environment, including a freeze of all bank that precluded the paying of suppliers and subcontractors. This issue, along with the ongoing currency crises, made for an extremely precarious business environment as described by the executives. Senator Chafee and I visited the Jewish Community Center and the site of a 1994 terrorist attack that killed eighty-four people. Upon our arrival to the Community Center, it was explained to us that the line in front of the building was persons visiting the visa office applying for travel to Israel as an escape from the Argentine economic situation. On January 10, 2002, Senator Chafee and I proceeded next to Montevideo, Uruguay for meetings with President Jorge Batlle and the Chief of Staff and National Drug and Anti-Terrorism Coordinator Leonardo Costa. We were accompanied by Ambassador Martin Silverstein, a Pennsylvanian, who is serving with distinction. We met with President Batlle for over one and one-half hours discussing Argentina, International Patent Rights (IPR), free trade issues, and narcotics. Regarding the Argentine economic crisis, the President was generally optimistic, providing that the new government follows the programs of the newly-installed Economic Minister Jorge Lenikov. President Batlle stated that President Duhalde appeared to have a strong majority within the Parliament. On International Patent Rights, the President expressed disagreement with the U.S. Government's approach to IPR legislation. While he favors drug legalization, he would not implement such a policy without an international consensus. I took the opportunity to praise the President's support for Free Trade Area of the Americas and free trade, pointing out that this seemed to contrast with the government's unwillingness to enact a strong copyright bill, which is an essential tool for attracting investment. On January 11, 2001, we traveled to Brasilia, Brazil where our first meeting was with representatives from the Brazilian Ministry of Health to discuss the government's response to HIV and AIDS. A comprehensive presentation by Claudio Duarte da Fonseca and Rosemeire Munhoz with the Health Ministry detailed Brazil's national response to their growing numbers of HIV and AIDS cases. Governmental lead efforts include prevention campaigns, mass media campaigns, behavioral interventions, condom distribution, and a policy of universal and free-of-charge access to ARV drugs. Our meeting with General Alberto Cardoso, the counterpart to our National Security Adviser, provided assurances of cooperation from his country with the U.S. and Israel efforts to oppose financing of Hezbollah terrorism from an enclave at the border of Paraguay, Argentina, and Brazil. There was no reason to believe that support has come from residents of that area for the bombing of the Israeli Embassy in Argentina in 1992 and the Jewish Community Center in Buenos Aires in 1994. With the worldwide focus on cutting off terrorist funding, the tri-border area is under international scrutiny. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to commend Senator Kennedy on his 70th birthday and his approximately 40 years in the Senate. I join my colleagues in recognizing and complimenting him on his unique achievements in the Senate. I was an admirer of the Kennedy family from afar for many years. Then I learned a great deal about the Kennedy family under circumstances which could have been more pleasant. I was one of the young lawyers on the Warren Commission staff investigating the assassination of President John F. Kennedy. I recall, years ago, a Democratic dinner in Philadelphia. I was a Democratic committee member in 1960 when President Kennedy ran for the White House. My wife Joan was 8 months pregnant when he came to speak at the big dinner in November. There was great enthusiasm and great excitement about Senator John Kennedy's appearance that night. We watched him at the White House in Camelot with great respect, and then the terrible events of November 22, 1963 occurred. Thereafter, I gained some greater familiarity with the Kennedy family as assistant counsel to the Warren Commission. Coming to the Senate after the 1980 election, I had an opportunity to work with Senator Ted Kennedy on the Judiciary Committee. His passion and his exuberance for the underdog were unmistakable on civil rights and voting rights. He is a real leader. I recall one hearing that he wanted to schedule on an occasion when I could be present. It was a voting rights matter where I had participated, and the hearing was set for 2:30 PM on July 1, 1987. That was the day on which Circuit Court Judge Robert H. Bork was nominated for the Supreme Court. Suddenly, at 2:30 PM, Senator Kennedy was absent. I saw him on the Senate floor, at 2:38 PM, making a carefully prepared speech. He was well attuned to the nomination and was talking about the back of the bus. It is all in the Congressional Record. Since I have only a few minutes, I will not go into this matter further. However, that was Senator Kennedy on civil rights. In this Chamber, he is bombastic in his declamations on the subjects which are near and dear to his heart. He does wear a microphone, but he hardly needs one when he speaks in this body. He fills the Chamber with his enthusiasm and his passion. When I chaired the subcommittee appropriating for education, there was no appropriation adequate for Senator Kennedy. However much money we put in, he wanted more. Very often--not always--but very often he was right, and the same was true with health care. On a number of occasions when he sought to cross the aisle to seek cosponsors on the Republican side of the aisle, I was about the last person standing on many of those occasions. I was glad to join him as a cosponsor on the hunger legislation, where it made no sense that people could not get food stamps if they had a car worth, say, $3,500. We fought hard and got the law changed. Then on hate crimes, his was a lonely voice in this Chamber for a long time. I joined him in that endeavor and signed on to an op-ed piece he had written, but I had agreed with, that was published in the Washington Post. Then, in the year 2000, we carried that Federal hate crime expansion amendment to the National Defense Authorization Act for Fiscal Year 2001 in the Senate 57 to 42, with 13 Republican Senators. It was an election year. He has been a great leader in the Senate. He carries on a great family tradition. He has been a stalwart on some of the most important issues confronting America in civil rights, in voting rights, in health care, and in education. So I am glad to lend my voice of recognition and commendation of his great service to the Senate.

Mr. SPECTER

Mr. SPECTER. I thank my colleagues and yield the floor. Amendment No. 2936

Mr. SPECTER. Four minutes.

Mr. SPECTER. Madam President, I discussed with the distinguished manager an opportunity to speak for just a few minutes in morning business. I could not be in the Chamber before. So I ask unanimous consent to speak for up to 5 minutes.

Mr. SPECTER

Mr. SPECTER. I thank my distinguished colleague from Nevada for those kind remarks. It surprised me. When I complimented him earlier, I did not know he was in the Chamber. I would have been just as effusive in my compliments, but to have him on the Republican side and to find him on the back bench is a surprise. I will be glad to work with Senator Reid on this amendment. I yield the floor.

Mr. SPECTER. If I may interrupt my distinguished colleague, scores is a vast understatement. We had 500 homicides a year in Philadelphia. We had some 30,000 cases a year. When I left the DA's position in January of 1974, I had 165 assistant DAs. We put people in jail in enormous numbers--robbers, rapists, murderers. I tried a good many of those cases myself, 4 years as an assistant DA. I was in the trial courts and appellate courts while DA. I prosecuted murder cases and rape cases. The problem of violence in America today is overwhelming. In a city like Philadelphia, it is an overwhelming problem. It is also an overwhelming problem in a city like Chicago. I know Las Vegas is a more law-abiding town, and Reno, NV. We have to tackle head on this problem of violent crime. I would like to see us address more of our attention between dividing career criminals, who commit 70 percent of the crimes, and throw away the book--they ought to be in jail for life; I wrote the armed career criminal bill which passed the Senate providing for life sentences for career criminals caught in possession of a firearm--and the balance of realistic rehabilitation, job training, literacy training, and recognizing them as citizens. I thank my colleague from Nevada for being the originator of this idea of giving them the right to vote, to help them be reintegrated.

Mr. SPECTER. Mr. President, I have sought recognition to speak in support of legislation which has been offered by the Senator from Nevada, Mr. Reid, and myself. Carefully and narrowly crafted, it would authorize ex-felons who have served any prison sentence--for misdemeanors as well--who have fully served their prison sentence, and any parole or probation, to have the right to vote in Federal elections. The statistics are that there are only 15 States, and the District of Columbia, that have a prohibition limiting all felons from voting. The balance of the 50 States have various provisions that allow ex-convicts to vote in a variety of circumstances. Four States--Utah, Vermont, Massachusetts, and Maine--even allow felons to vote while they are in prison; 14 States, and the District of Columbia, only prohibit felons from voting when in prison; 32 States prohibit felons from voting while on probation and/or on parole. This amendment would authorize ex-convicts who have fully paid their debt to society to vote in Federal elections, leaving the matter for State elections to be determined by the State. It is my view that this provision would aid ex-convicts in being reintegrated into society and would be a fair provision on the basic proposition that these people have fully paid their debt to society. I say this with some experience in the field, having been in the prosecution line for some 12 years--8 years as district attorney of Philadelphia, and 4 years before that as an assistant district attorney. In those positions--especially in my early days as an assistant district attorney--having had the opportunity to interview many individuals incarcerated in jail, the first job I received as chief of the appeals, pardons, and parole section of the Philadelphia district attorney's office was interviewing inmates who were under the death penalty, where an application had been made for commutation. Candidly, it was quite an experience to go to death row and talk to men and women who were under the death penalty--to talk about the offenses for which they had been convicted, talk about what they had done in prison, what they had done by way of trying to rehabilitate themselves, their reasons for believing they were worthy of having the judgment of sentence of death changed. In the prosecutor's office, it seemed to me that our criminal justice system was not directed in the most efficient way at protecting the public, and that would be to provide for life sentences for career criminals. If you found somebody who was a career criminal--by that, I mean someone convicted of three or more serious offenses--then they get a life sentence. If, on the other hand, you deal with everybody else who is going to be released from jail--and that would be especially juveniles, but anybody else who is released from jail and comes back into society--there, with the rates of recidivism, repeat offenders, society is at risk. It seemed to me--and I worked on this while being district attorney of Philadelphia, and since in the Senate--we needed to provide what I call realistic rehabilitation. By that, I mean literacy training and job training. If we had this division between career criminals, who commit about 70 percent of the crimes, and the other individuals who are going to be released into society, and made a real effort at rehabilitation with job training and literacy training so they can reenter the community, my professional judgment is that we could reduce violent crime in America by some 50 percent. I think giving an ex-convict who has paid his or her debt to society the right to vote would be of significant and material assistance to reintegrating that person into society. When somebody comes out of jail, it is obviously a tough line to make it on the outside, and there is a matter of self-worth. There is a matter of where the person stands in society, if society says to that individual, You have paid your debt; we want you to come back and be a law-abiding citizen, and one facet of recognition of your having paid your debt to society is that you are restored in your citizenship the right to vote. Some have said: What if you are dealing with a rapist? Or what if you are dealing with a terrorist? Or what if you are dealing with a murderer? What if you are dealing with somebody who has had a bad record of violence? The criminal justice system has evaluated that person. That person has gone through a trial, and that person has been adjudicated guilty. That is the verdict. Then there has been a sentence. Sometimes the sentence is the death penalty. We are seeing more and more people who have been sentenced to death or for long periods of imprisonment being exonerated through DNA tests. Whatever the procedure is, however the person has been adjudicated by the criminal justice system, once that person has served the sentence and is out of jail, once that person has served probation or parole, as far as the criminal justice system is concerned, that individual has paid his or her debt to society. Having paid the debt to society, which is the common parlance term, that individual owes nothing more to society. That person, I believe, ought to have the right to vote. The amendment has been crafted so that it covers only Federal elections, and I think that is a sensible distinction because the Congress of the United States controls voting procedures in Federal elections. The election reform bill we have before us today is a very significant bill. It will address the concerns we had after the elections in the year 2000 when we had the question of the chads and what were people's intent to vote, and try to produce an electoral system which is calibrated and calculated to reflect the intent of the voters when they do vote. The bill also seeks to deal with widespread problems of fraud where some people vote in more than one polling place; some people are not entitled to vote. When I was district attorney of Philadelphia, that was a particular problem I had. Philadelphia is a rough, tough city, probably challenged only by Chicago, IL--that might attract the attention of the Presiding Officer. Chicago and Philadelphia have had, I think, unique problems with voter fraud. As DA, I worked on that a great deal, and I am glad to see this bill seeks to address that problem. The amendment I am addressing has a specific focus on people who have paid their debt to society. It makes sense. I think they are entitled to vote, to have their civil rights restored, and it could be very significant in reintegrating that person into society, saying to that person: You have paid your debt; we recognize you as a law-abiding citizen; you have a duty to remain a law-abiding citizen; we will try to assist on the rehabilitation, try to avoid your repeating a crime, a recidivist, and this is reintegration into society. I am pleased to join the distinguished Senator from Nevada as being a cosponsor of this amendment.

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce, on behalf of Senator Durbin and myself, legislation entitled the ``Military Commission Procedures Act of 2002.'' The President issued an order establishing generalized procedures for trying members of al-Qaida and the Taliban. It is my view and Senator Durbin's view that Congress ought to consider what are the appropriate procedures pursuant to our authority under the Constitution, article I, section 8, which gives to the Congress the responsibility and authority ``To define and punish . . . Offenses against the Law of Nations.'' We have already legislated in part, delegating to the President the authority to establish military tribunals ``by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.'' The President promulgated his order without consultation with Congress. This legislation is a starting point for what we believe ought to be consideration by the Judiciary Committee. In the President's order, there was a provision that there could be no appeal from any order of the military tribunal. But that, on its face, was inconsistent with the Constitution, which preserves the right of habeas corpus unless there is rebellion or invasion, neither of which had occurred here. The President's order also allowed for conviction of a capital offense by a two-thirds vote, but that is inconsistent with the Uniform Code of Military Justice, and the law does not allow a regulation to be inconsistent with that law. So Senator Durbin and I have provided the modifications that two- thirds is acceptable generally. But if the sentence carries 10 years or more, it requires a three-fourths vote. And for the death penalty, it would require a unanimous vote. This legislation further provides for right to counsel consistent with the Uniform Code of Military Justice, which would be either military counsel or could be private counsel. But that right is preserved. On one provision, we have provided that there would be no ``Miranda'' rights for suspects who are interrogated. I candidly concede that in abrogating ``Miranda'' rights, that will be a source of some contention, which can be the subject of hearings. But it is our view that we should not give al-Qaida or Taliban prisoners access to counsel before they are questioned, first, for the safety of the soldiers who are doing the questioning, and, second, because of the importance, potentially, that eliciting information would stop further terrorist attacks. Of course, we could provide no ``Miranda'' warnings in advance but not allow admissions to be used at trial, but it is our view, subject to hearings and further consideration, that ``Miranda'' rights ought not to be required. We have provided for an open trial unless there is classified information; and, if classified information is used, we have incorporated the provisions of the Anti-Terrorism Act of 1996--a compromise worked out by Senator Simon and myself on the floor--which provides for a summary to be given to the defendant and the commission, to be reviewed by the commission, to see if it is adequate to protect sources and methods of classified information and also adequate to inform the defendant of the evidence so that the defendant would have substantially the same ability to make his defense as he would if the classified information was disclosed. We have not provided any restrictions on rules of evidence, since it is the custom of Congress not to do so. But we think this legislation is an important first step. We now know there is a large contingent of those captive in Guantanamo Bay. I believe the President made a sound decision in saying that al-Qaida members were not prisoners of war, not subject to the Geneva Convention because they are terrorists, murdering innocent civilians. The President did accord Taliban members the protections of the Geneva Convention. But these trials will soon start. It is very important that our country and our Government proceed with accepted norms for criminal trials. To have a death penalty imposed on a two-thirds vote, as is in the Presidential order, would not be consistent with our generalized standards. To provide for no appeal is not consistent with the constitutional provisions.

Mr. SPECTER

Mr. SPECTER. We believe this is a starting point. We urge early hearings so we can establish the parameters, so when we deal with these treacherous terrorists, we will, in accordance with American standards, give them basic due process--no more, but basic due process.

Mr. SPECTER. I ask unanimous consent for 30 seconds to finish my sentence, Mr. President.

Mr. SPECTER. Mr. President, I have sought recognition to introduce, on behalf of Senator Durbin and myself, legislation entitled the ``Military Commission Procedures Act of 2002.'' The President issued an order establishing generalized procedures for trying members of al-Qaida and the Taliban. It is my view and Senator Durbin's view that Congress ought to consider what are the appropriate procedures pursuant to our authority under the Constitution, article I, section 8, which gives to the Congress the responsibility and authority ``To define and punish . . . Offenses against the Law of Nations.'' We have already legislated in part, delegating to the President the authority to establish military tribunals ``by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.'' The President promulgated his order without consultation with Congress. This legislation is a starting point for what we believe ought to be consideration by the Judiciary Committee. In the President's order, there was a provision that there could be no appeal from any order of the military tribunal. But that, on its face, was inconsistent with the Constitution, which preserves the right of habeas corpus unless there is rebellion or invasion, neither of which had occurred here. The President's order also allowed for conviction of a capital offense by a two-thirds vote, but that is inconsistent with the Uniform Code of Military Justice, and the law does not allow a regulation to be inconsistent with that law. So Senator Durbin and I have provided the modifications that two- thirds is acceptable generally. But if the sentence carries 10 years or more, it requires a three-fourths vote. And for the death penalty, it would require a unanimous vote. This legislation further provides for right to counsel consistent with the Uniform Code of Military Justice, which would be either military counsel or could be private counsel. But that right is preserved. On one provision, we have provided that there would be no ``Miranda'' rights for suspects who are interrogated. I candidly concede that in abrogating ``Miranda'' rights, that will be a source of some contention, which can be the subject of hearings. But it is our view that we should not give al-Qaida or Taliban prisoners access to counsel before they are questioned, first, for the safety of the soldiers who are doing the questioning, and, second, because of the importance, potentially, that eliciting information would stop further terrorist attacks. Of course, we could provide no ``Miranda'' warnings in advance but not allow admissions to be used at trial, but it is our view, subject to hearings and further consideration, that ``Miranda'' rights ought not to be required. We have provided for an open trial unless there is classified information; and, if classified information is used, we have incorporated the provisions of the Anti-Terrorism Act of 1996--a compromise worked out by Senator Simon and myself on the floor--which provides for a summary to be given to the defendant and the commission, to be reviewed by the commission, to see if it is adequate to protect sources and methods of classified information and also adequate to inform the defendant of the evidence so that the defendant would have substantially the same ability to make his defense as he would if the classified information was disclosed. We have not provided any restrictions on rules of evidence, since it is the custom of Congress not to do so. But we think this legislation is an important first step. We now know there is a large contingent of those captive in Guantanamo Bay. I believe the President made a sound decision in saying that al-Qaida members were not prisoners of war, not subject to the Geneva Convention because they are terrorists, murdering innocent civilians. The President did accord Taliban members the protections of the Geneva Convention. But these trials will soon start. It is very important that our country and our Government proceed with accepted norms for criminal trials. To have a death penalty imposed on a two-thirds vote, as is in the Presidential order, would not be consistent with our generalized standards. To provide for no appeal is not consistent with the constitutional provisions.

Mr. SPECTER

Mr. SPECTER. I yield the floor.

Mr. SPECTER. Mr. President, I have sought recognition to comment about our war against terrorism and about the recent statements made by Administration officials concerning possible actions toward Iraq. At the outset, I compliment President Bush and the Administration for the very effective steps taken on the war against terrorism. We have seen the response to the disastrous, tragic, horrendous events of September 11, with the military moving in, doing in Afghanistan what the Soviets could not do, and doing what the British could not do much earlier. We are well on our way, having defeated the Taliban and al- Qaida; very impressive steps taken in the war against terrorism. The President has done an outstanding job on leadership on this critical issue. There have been comments recently about the possibility of action against Iraq, and that may well be warranted. On this state of the record, it is my thinking there are quite a number of serious questions which have to be answered. We need to know, with some greater precision, the threat posed by Saddam Hussein with respect to weapons of mass destruction. There is solid evidence about Saddam Hussein having chemical weapons, substantial evidence on biological weapons, and some questions about nuclear weapons. However, there really ought to be a comprehensive analysis as to the precise nature of Saddam Hussein's threat. Iraq is on the record as having supported terrorism, and it seems to me there ought to be an elaboration as to the terrorist activities which are attributable to Iraq. If there is to be military action, we ought to have a full statement as to Iraq's violations of UN inspections. We know that the UN inspectors have been ousted, but here again, this is an issue where more information is necessary for the Congress and, in my view, for the American people. There also has to be an analysis of what the costs would be, some appraisal in terms of casualties, depending upon the nature of the contemplated action. Then there is the issue as to what happens after Saddam Hussein is toppled. There is no doubt about the desirability of toppling Saddam Hussein. By twenty-twenty hindsight, perhaps it is regrettable the United States and its allies did not move on Baghdad in 1991. That, obviously, is water over the dam. There were many factors to be considered including the unwillingness of our allies at that time to move. The U.S. had success against Iraq in 1991, but toppling Saddam Hussein was an action that was obviously not taken. There have been statements by the President in identifying the axis of evil as Iran, Iraq, and North Korea. The President has stated if we do not have the cooperation of our allies we will act alone, and I think there is a solid basis for the President to say that and for the President to give serious consideration to acting alone. We know there were many danger signals as to Osama bin Laden and al- Qaida. We know that bin Laden was under indictment for murdering Americans in Mogadishu in 1993. He was under indictment for murdering Americans and others in the embassy attacks in 1998. He was implicated in the terrorism against the USS Cole. He pledged a worldwide ``jihad'' against the United States. There was substantial authority under international law for what had transpired for the United States to act. What we have seen in modern times is in effect a non-determination of guilt and action against terrorism as a matter of self-defense recognized under international law. When President Reagan acted against Muammar Qadhafi in April of 1986, that was in effect a non- determination of guilt, and we moved in self-defense against Qadhafi. When President Clinton dispatched missiles to Afghanistan in August of 1998--again, a non-judicial determination of guilt. There would have been total justification for the United States moving against al-Qaida and Osama bin Laden in advance of September 11. That experience suggests we have to make a careful analysis, a calculated analysis of the risks. It may well be justified as a matter of self-defense to act, and act against Saddam Hussein and Iraq. As we know by twenty-twenty hindsight, the vision is very clear. We know in twenty-twenty hindsight that it would have been wise to have acted against Osama bin Laden and al-Qaida before September 11. The statements reported from Secretary Colin Powell yesterday, in testifying before the Senate Budget Committee, are worth noting with particularity. Secretary Powell was quoted as saying: ``With respect to Iraq, it has long been for several years now a policy of the U.S. Government that regime change would be in the best interests of the region, the best interests of the Iraqi people.'' Secretary Powell also said: ``With respect to Iran and with respect to North Korea, there is no plan to start a war with these nations.'' By the grammatical negative pregnant pause, the implication is pretty clear that when the Secretary of State says in formal testimony before the Senate committee that there is no plan to ``start a war with these nations,'' referring to Iran and North Korea, there is a different plan with respect to Iraq. As I say, it may well be justified. If there is to be a use of force and if there is to be war, under our Constitution it is the responsibility and it is the authority of the Congress of the United States to make the determination to declare war. That constitutional provision is there for a very good reason. We in the Senate and those in the House of Representatives represent the American people, and we speak for the American people. We have seen the bitter lesson from Vietnam that we cannot prosecute a war without the public support. If there is to be the authorization for the use of force or declaration of war, that is a matter that ought to come before the Congress. These are views I have held for a very long time. In college I studied political science and international relations and served stateside during the period of the Korean war. At that time I wondered about being engaged in a war which was not a matter of congressional determination. That may be a somewhat personal aspect, having been called to service, and I was glad to spend twp years in the U.S. Air Force. I served stateside. However, the question in my mind at that time, having studied international relations and knowing the constitutional provision, was why a war was not declared. Since coming to the Senate, I have been engaged in debates in this Chamber on this subject on many occasions. In 1983 when there was military action in Lebanon, I had an extensive colloquy with Senator Percy, then Chairman of the Foreign Relations Committee, and asked him if, in fact, Korea was not a war. He said, ``yes, it was a war.'' I asked about Vietnam, ``was it a war?'' ``Yes, it was a war.'' However, on neither occasion was the declaration determined by the Congress. On the hearings for nominees for the Supreme Court, that was a question I posed with some frequency to nominees, illustrative of which was the confirmation of Justice David Souter. I recalled on Friday asking him, ``was Korea a war?'' I wanted to know. I had framed litigation which I took to Senator Baker for determination as to the War Powers Act and constitutionality, thinking there would be an appropriate judicial determination on that subject. Not unexpectedly, Justice Souter said he had not thought about it. So I said, take some time, and over the weekend we had an adjournment and came back on Monday. I said, ``you have had time to think about it. Was Korea a war?'' He said, ``I do not know''--which is not a bad answer. If you do not know, you do not know. There is not much you can say by questioning beyond that. I see Justice Souter from time to time, and that colloquy is something about which he comments from time to time. When this body took up the resolution for the use of force in 1991, I have a clear recollection that President Bush did not want the resolution put before the Senate and before the House. I think he was concerned whether it would be approved. There was historic debate here in January of 1991. The Senate approved the resolution for the use of force by a vote of 52 to 47. The comments at that time went to the effect that it was a historic event. However, when President Bush had the resolution by the House and by the Senate, it was a much stronger approach. His reluctance to come before Congress is typical of the tension which exists between the executive and legislative branches, with the Presidents traditionally saying they do not need congressional authorization to act because they have the constitutional authority as Commander in Chief, and the response institutionally from many in the Congress has been, ``no, the Congress has the sole authority to involve the United States in war by our sole constitutional authority.'' The history of the War Powers Act is a very significant development. The executive branch, the President, while complying with it, traditionally says it is not constitutional; he is not really bound to do so. We had the issue raised again when President Clinton sent missiles into Baghdad. I took the floor on a number of occasions in 1998 arguing that with the imminence of the likelihood of action by the President on missiles in Baghdad, the House of Representatives and Senate ought to stand up and make that determination. Candidly, the Congress is never very anxious to make that determination. It is easier to let the President make the decision. If he is wrong, he gets the blame. If he is right, then the issue passes. We did have the debate on the bombing of Yugoslavia. It passed this body. It came to a tie vote, 213-to-213, in the House of Representatives. Therefore, Congress had not authorized that attack. It takes, obviously, a resolution on both sides. However, the bombing went ahead. We are facing a very serious situation with Iraq. Iraq is a real menace. There is no doubt about that. I think there are very strong United States national interests to topple Saddam Hussein, and I think it is very much in the interests of the people of the region that he be toppled and also very much in the interests of the people of Iraq that he be toppled. However, I do believe that, constitutionally, it is a judgment which ought to come before the Congress of the United States. I believe there ought to be hearings by the appropriate committees of the Congress to take up these questions as to the specific threats which Saddam Hussein poses and Iraq's specific activities on terrorism--a good bit of it, doubtless, might have to be conducted in closed session. However, some of it could be conducted in an open session: what the costs would be, the casualties, and what happens afterwards. However, the American people need to know much more of the details, and I believe the Congress needs to know much more of the details than what has been conveyed so far by the Administration. It is my hope that this issue will attract the attention of the Congress of the United States with statements such as this one, with hearings, and with our deliberative process, recognizing the seriousness of the issue and recognizing also our constitutional responsibility.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.